James G. v. Caserta, s. CC944

Decision Date11 July 1985
Docket NumberNos. CC944,16426,s. CC944
Citation175 W.Va. 406,332 S.E.2d 872
CourtWest Virginia Supreme Court
PartiesJAMES G. and Lurana G. v. Larry CASERTA, M.D. JENNIFER S., a minor, etc., et al. v. Amnath KIRDNUAL, M.D.

Syllabus by the Court

1. The term "wrongful pregnancy" is applicable to those cases where a failed sterilization procedure has resulted in the birth of a healthy child. The term "wrongful birth" applies to those cases where the child is born with a birth defect.

2. The liability theory in the most common wrongful pregnancy action is the parents' claim that the physician was negligent in performing a sterilization procedure and as a consequence the parents conceived a child for whom they had not planned and seek to recover hospital, medical, and other related expenses attendant to the birth of the child.

3. The legal theory in a wrongful birth claim is based on the fact that the physician failed to advise the parents of the existence of a condition indicating that their child may have birth defects. This failure to advise prevented the parents from making an informed decision with regard to not conceiving a child or, in the event of a pregnancy, to terminate the same.

4. An action based on wrongful pregnancy is recognized in this State.

5. In applying our general rules governing damages to a wrongful pregnancy action, we conclude that the following damages are recoverable, if proven: (1) any medical and hospital expenses incurred as a result of a physician's negligence, including costs of the initial unsuccessful sterilization operation, prenatal care, childbirth, postnatal care, and a second sterilization operation, if obtained; (2) the physical and mental pain suffered by the wife as a result of the pregnancy and subsequent childbirth and as a result of undergoing two sterilization operations; and (3) recovery for the loss of consortium and loss of wages.

6. The ordinary costs of raising a healthy child cannot be recovered in a wrongful pregnancy action.

7. A claim brought on behalf of a child who is born with birth defects is generally labeled by courts as a claim for "wrongful life."

8. In this jurisdiction, a claim for wrongful life does not exist in the absence of any statute giving rise to such a cause of action.

9. A cause of action for wrongful birth is recognized in this State.

10. Under the common law where a child is incapable of supporting himself because of physical or emotional disabilities, the parents' obligation to support continues beyond the child's age of majority.

11. Parents may in a wrongful birth action recover the extraordinary costs for rearing a child with birth defects not only during his minority, but also after the child reaches the age of majority if the child is unable to support himself because of physical or emotional disabilities.

Paul A. Ryker, Huntington, for appellants James G. and Lurana G.

Wood, Grimm & Delp, John F. Wood, Jr., Robert M. Losey, Huntington, for appellee Caserta.

Charles S. Morrow, Pittsburgh, Pa., Kenneth E. Kincaid, Morgantown, for appellants Jennifer S. et al.

Steptoe & Johnson, Herbert G. Underwood, Irene M. Keeley, Clarksburg, for appellee Kirdnual.

MILLER, Chief Justice:

These two cases have been consolidated for purposes of this opinion as they involve interrelated issues dealing with the rights of parents and their children to recover damages against health care providers for what are commonly called wrongful pregnancy, wrongful birth, and wrongful life causes of action. 1

The first case comes by way of certified questions from a federal district court and involves parents seeking to recover damages resulting from an alleged negligently performed tubal ligation. The wife subsequently became pregnant and delivered a healthy child. In the second case, the parents claim that the physician failed to perform an amniocentesis test on the wife, which would have revealed that the child had a birth defect. Both the parents and the child seek to recover damages in this case.

I.
A.

The first of the two certified questions from the United States District Court for the Southern District of West Virginia, pursuant to W.Va.Code, 51-1A-1, 2 asks whether a cause of action for wrongful birth is recognized in West Virginia. 3 If we answer the first question in the affirmative, then the second question is what damages may be recovered in such an action.

Courts have devised several terms to describe causes of action involving a physician's negligence that results in unplanned pregnancies or births. Some courts make a distinction between wrongful birth and wrongful pregnancy, also referred to as wrongful conception. According to these courts, wrongful birth is an action brought by the parents of a child born with birth defects while wrongful pregnancy is an action brought by the parents of a child born healthy. See Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Blake v. Cruz, 698 P.2d 315 (Idaho 1984); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); Handling Pregnancy & Birth Cases §§ 3.8, 6.1 (1983); Annot., 83 A.L.R.3d 15 (1978). 4 We believe that there are material distinctions in the underlying causes of action and in the amount of damages that can be recovered by the parents in the two situations. 5 We will use the term "wrongful pregnancy" for those cases where a failed sterilization procedure has resulted in the birth of a healthy child. The term "wrongful birth" applies to those cases where the child is born with a birth defect. See Part II, infra. Therefore, even though the certified questions use the term "wrongful birth," we will answer the questions with regard to a wrongful pregnancy action, which we believe is more appropriate in the present case.

The liability theory in the most common wrongful pregnancy action is the parents' claim that the physician was negligent in performing a sterilization procedure and as a consequence the parents conceived a child for whom they had not planned and seek to recover hospital, medical, and other related expenses attendant to the birth of the child. As we explain in greater detail in Part II, the usual theory in a wrongful birth claim is not that the parents did not desire to have a child initially and, thereby, underwent sterilization procedures. Rather, the legal theory is based on the fact that the physician failed to advise the parents of the existence of a condition indicating that their child may have birth defects. This failure to advise prevented the parents from making an informed decision with regard to not conceiving a child or, in the event of a pregnancy, to terminate the same.

The facts involved in the underlying civil suit can be summarized briefly. The plaintiffs, husband and wife, decided that to avoid having any more children, the wife would undergo a tubal ligation operation, which was performed by Dr. Larry Caserta on January 8, 1981. In August of 1981, the plaintiffs were informed that the wife was pregnant and in February of 1982, she gave birth to a healthy child. Subsequently, the plaintiffs filed this civil action against Dr. Caserta for the alleged negligently performed tubal ligation.

We emphasize that we are concerned only with the two certified questions presented and do not address the liability of the defendant physician. The certified questions, in effect, ask us to assume that there is proof of malpractice in order to determine whether we recognize the cause of action.

An overwhelming majority of other jurisdictions have recognized a cause of action for wrongful pregnancy or wrongful birth. 6 The usual analysis applied in these cases is that if the physician has negligently performed the sterilization operation, he has breached his duty to his patient. From a proximate cause standpoint, it is foreseeable that as a result of this negligence, another child will be born and the parents will incur damages as a result of the medical and hospital costs associated with the birth of the child as well as other damages. The Supreme Court of Alabama summarized this approach in Boone v. Mullendore, 416 So.2d 718, 720 (Ala.1982):

"[I]n order to state a cause of action for negligence, the plaintiff must show that the defendant has a legal duty, that the defendant has breached that duty, that the defendant's breach proximately caused an injury, and that damages have resulted to the plaintiff.... It is also the law in Alabama that a physician owes a duty to exercise reasonable care in the treatment of his or her patients.... Therefore, if proven, the negligent misrepresentation of the nature of the surgery and/or such negligent performance of that surgery as would wrongfully cause a patient to become pregnant would be a breach of that duty." (Citations omitted).

This follows our general law regarding proof of malpractice as set out in Syllabus Point 1 of Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979):

" 'In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff.' Point 4, Syllabus, Hundley v. Martinez, 151 W.Va. 977 (1967)."

See also Syllabus Point 1, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964); Syllabus, White v. Moore, 134 W.Va. 806, 62 S.E.2d 122 (1950).

In light of the authority from other jurisdictions and our medical malpractice cases, we conclude that an action based on wrongful pregnancy is recognized in this State, and, therefore, answer the first certified question in the affirmative.

B.

The second certified question requests that we specify the damages that are recoverable in a wrongful pregnancy action. The plaintiffs seek recovery for the medical expenses attributable to the original tubal ligation, prenatal care, childbirth, postnatal care, and the cost of...

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